About the issue

Criminalization of HIV non-disclosure

In Canada, a person living with HIV who does not disclose their HIV-positive status to a sexual partner before engaging in a sexual activity that poses what the courts call a “reasonable possibility of transmission” can be charged with aggravated sexual assault. This is because the Canadian Criminal Code has a provision that specifies that consent obtained by fraud is vitiated, and the Supreme Court of Canada has ruled that not disclosing one’s HIV-positive status when there is a “significant risk of serious bodily harm” is a type of fraud.

The Canadian HIV/AIDS Legal Network has been exploring the implications of using sexual assault law to prosecute HIV non-disclosure cases, given the marked differences between the types of conduct that are typically referred to as sexual assault (including rape) and HIV non-disclosure cases. This analysis is demonstrating that the use of sexual assault law in the HIV non-disclosure context — where the sexual activity is consensual other than the non-disclosure — is a poor fit and can ultimately have a detrimental impact on sexual assault law as a tool to advance gender equality and renounce gender-based violence.